Related Delaware Topics

Minimum wage

Delaware’s current minimum wage is $8.25.

By law, if the federal minimum wage set forth in the Fair Labor Standards Act increases to be greater than the minimum wage set by Delaware minimum wage laws, Delaware’s minimum wage will automatically increase to match the federal rate. DE Statutes 19-902(a)

Delaware employers must also comply with federal minimum wage laws, which currently sets the federal minimum wage at $7.25. See FLSA: Minimum Wage.

Tip minimum wage

Delaware’s minimum wage for tipped employees is $2.23.

Employers are allowed to pay employees the tipped minimum wage if the employees work in occupations where they customarily earn gratuities. DE Code 19-902(b) An occupation qualifies as on where gratuities are customarily earned if the employees engaged in the occupation customarily and regularly receive gratuities or tips in excess of $30 per month.

Gratuities are defined as monetary contributions voluntary given to employees by customers for services provided by the employees. Customers are free to decide if they will reward the employees for their service and, if so, the amount they will give. DE Code 19-902(c)(2) When paid, gratuities are the sole property of the employee directly providing the service and may not be retained by the employer except as required by state of federal law. DE Code 19-902(d)(1)

Service charges are not gratuities or tips. They are defined as sums of money customers are required to pay for services provided. Unlike tips, employers may retain services charges, however, the employer must provide clear and conspicuous notice to customers that it is doing so. The notice may be placed in the menu, on a placard, on the front of the bill, or another location that is clear and conspicuous. The notice must be clearly printed, stamped, or written in bold type and inform customers that all or part of the service charge are the property of management. Text on placards must be 18 points (1/4 inch) or larger. The text on all other forms of notice must be 10 points (1/8 inch) or larger. If the employer fails to provide proper notice, the service charges become the property of the employees that provided the service. DE Code 19-902(c)(4)

Tip pooling and sharing

Employees may voluntarily agree to participate in a tip pooling arrangement and an employer cannot coerce employees to do so. When more than one employee provides direct service to a customer, the employer may require the employees to establish a tip pooling or sharing system not to exceed 15% of the primary direct service employee’s gratuities. Employers are prohibited from taking any portion of an employee’s gratuities or tips. 19 DE Statute 19-902(d)(2)

Subminimum wage

Employees with disabilities

Employers may pay employees with disabilities a wage less than the minimum wage if they have received approval from Delaware’s Department of Labor. DE Code 19-905; DE Admin. Code 1102 The wage cannot be less than 75% of the minimum wage, unless the Department of Labor determines a lower rate is justified. DE Admin. Code 19-1102(8.3) If an employer pays non-disabled employees by piece rate, it must pay disabled employees working in the same occupation at least the same piece rate or the rate certified by the Department of Labor, whichever is more. DE Admin. Code 19-1102(84)

An employer may obtain a certificate of approval from the Department of Labor by filing an application which contains a detailed description of the nature of the employee’s disability, a description of the work that will be performed, and the proposed wage rate to be paid. DE Admin. Code 19-1102(3) The Department of Labor sets the period of time the certificate is effective and employers can seek renewal of the certificate submitting a new application. DE Admin. Code 19-1102(8.2), (9)

Trainees

Delaware allows employers to apply for and obtain certificates to pay disabled trainees less than the standard minimum wage for up to 90 days from the date the certificate is issued. DE Admin. Code 19-1102(4.1) Disabled trainees include individuals who have impaired earning capacity due to age or physical or mental deficiency who are receiving or scheduled to receive on-the-job training in any vocational rehabilitation program. DE Admin. Code 19-1102(2), (3) Disabled trainees may not be paid at a wage rate less than 50% less that the wage paid to nondisabled individuals who are working in the industry in the general geographic area and are performing the same type, quality, and quantity of work. DE Admin. Code 19-1102(4.1) The Department of Labor will not issue a certificate authorizing an employer to pay an disabled trainee less than the standard minimum wage if the desired training is available in the community at the standard minimum wage. DE Admin. Code 19-1102(4.3)